Amended in Assembly April 15, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 797


Introduced by Assembly Member Gordon

February 21, 2013


An act to add Article 4 (commencing with Section 100150) to Chapter 5 of Part 12begin delete ofend deletebegin insert of, and to add Article 12 (commencing with Section 103394) to Chapter 5 of Part 15 of,end insert Division 10 of the Public Utilities Code, relating to transportation.

LEGISLATIVE COUNSEL’S DIGEST

AB 797, as amended, Gordon. begin deleteSanta Clara County Valley Transportation Authority: contracts. end deletebegin insertTransit districts: contracts.end insert

Existing law creates the Santa Clara County Valley Transportation Authority with various powers and duties relative to transportation projects and servicesbegin insert in the County of Santa Claraend insert.begin delete Existing law authorizes the authority to enter into contracts, as specified.end deletebegin insert Existing law creates the San Mateo County Transit District with various powers and duties relative to transportation projects and services in the County of San Mateo. Existing law authorizes the authority and the district to enter into contracts, as specified.end insert

This bill would authorize the authoritybegin insert and the districtend insert to utilize the Construction Manager/General Contractor project delivery contract method for transit projects withinbegin delete its jurisdictionend deletebegin insert their respective jurisdictionsend insert, subject to certain conditions and requirements. The bill would require the authoritybegin insert or districtend insert to reimburse the Department of Industrial Relations for certain costs of performing wage monitoring and enforcement on projects using this contracting method, and would require those funds to be used by the department for enforcement of prevailing wage requirements on those projects.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Article 4 (commencing with Section 100150) is
2added to Chapter 5 of Part 12 of Division 10 of the Public Utilities
3Code
, to read:

4 

5Article 4.  Construction Manager/General Contractor Project
6Delivery Contracts
7

 

8

100150.  

For purposes of this article, the following terms shall
9have the following meanings:

10(a) “Construction Manager/General Contractor method” or
11“CMGC” means the Construction Manager/General Contractor
12method as defined in subdivision (b) of Section 6951 of the Public
13Contract Code.

14(b) “Construction manager” means a construction manager as
15defined in subdivision (c) of Section 6951 of the Public Contract
16Code.

17

100151.  

(a) Subject to the limitations of this article, the
18authority may utilize the CMGC project delivery method for public
19transit projects within its jurisdiction.

20(b) The authority may enter into a CMGC project delivery
21method contract pursuant to this article if, after evaluation of the
22traditional design-bid-build process of construction and of the
23CMGC project delivery method in a public meeting, the authority
24makes a written finding that use of the CMGC project delivery
25method on the specific project under consideration will accomplish
26one or more of the following objectives: reduce project costs,
27expedite the project’s completion, or provide features not
28achievable through the design-bid-build method. This finding shall
29be made prior to the authority entering into a CMGC project
30delivery method contract. In the CMGC project delivery method
31proposal, the written findings shall be included as part of an
32application for state funds for a transit project.

P3    1

100152.  

(a) Except as specified in subdivision (b), the authority
2shall comply with subdivision (f) of Section 1771.5 of the Labor
3Code and shall reimburse the Department of Industrial Relations
4for its reasonable and directly related costs of performing prevailing
5wage monitoring and enforcement on public works projects
6pursuant to rates established by the department as set forth in
7subdivision (h) of Section 1771.5 of the Labor Code on projects
8using the CMGC project delivery method under this article. All
9moneys collected pursuant to this subdivision shall be deposited
10in the State Public Works Enforcement Fund, created by Section
111771.3 of the Labor Code, and shall be used only for enforcement
12of prevailing wage requirements on those projects.

13(b) In lieu of complying with subdivision (a), the authority may
14elect to enter into a collective bargaining agreement that binds all
15of the contractors performing work on the project and that includes
16a mechanism for resolving disputes about the payment of wages.

17

100153.  

(a) If a contract for CMGC services is entered into
18pursuant to this article and includes preconstruction services by
19the construction manager, the authority shall enter into a written
20contract with the construction manager for preconstruction services,
21under which the authority shall pay the construction manager a
22fee for preconstruction services in an amount agreed upon by the
23authority and the construction manager. The preconstruction
24services contract may include fees for services to be performed
25during the contract period; provided, however, the authority shall
26not request or obtain a fixed price or a guaranteed maximum price
27for the construction contract from the construction manager or
28enter into a construction contract with the construction manager
29until after the authority has entered into a services contract. A
30preconstruction services contract shall provide for the subsequent
31negotiation for construction of all or any discrete phase or phases
32of the project and shall provide for the authority to own the design
33plans and other preconstruction services work product.

34(b) A contract for construction services will be awarded after
35the plans have been sufficiently developed and either a fixed price
36or a guaranteed maximum price has been successfully negotiated.
37In the event that a fixed price or a guaranteed maximum price is
38not negotiated, the authority may award the contract for
39construction services utilizing any other procurement method
40authorized by law.

P4    1(c) The construction manager shall perform not less than 30
2percent of the work covered by the fixed price or guaranteed
3maximum price agreement reached. Work that is not performed
4directly by the construction manager shall be bid to subcontractors
5pursuant to Section 6955 of the Public Contracts Code.

6

100154.  

Nothing in this article affects, expands, alters, or limits
7any rights or remedies otherwise available at law.

8

100155.  

(a) Upon completion of a project using the CMGC
9project delivery method, the authority shall prepare a progress
10report to the board of directors. The progress report shall include,
11but shall not be limited to, all of the following information:

12(1) A description of the project.

13(2) The entity that was awarded the project.

14(3) The estimated and actual costs of the project.

15(4) The estimated and actual schedule for project completion.

16(5) A description of any written protests concerning any aspect
17of the solicitation, bid, proposal, or award of the project, including,
18but not limited to, the resolution of the protests.

19(6) An assessment of the prequalification process and criteria
20utilized under this article.

21(7) A description of the method used to evaluate the bid or
22proposal, including the weighting of each factor and an assessment
23of the impact of this requirement on a project.

24(8) A description of any challenges or unexpected problems
25that arose during the construction of the project and a description
26of the solutions that were considered and ultimately implemented
27to address those challenges and problems.

28(9) Recommendations to improve the CMCG project delivery
29method authorized under this article.

30(b) The progress report shall be made available on the authority’s
31Internet Web site.

32

100156.  

(a) The provisions of this article are severable. If any
33provision of this article or its application is held invalid, that
34invalidity shall not affect other provisions or applications that can
35be given effect without the invalid provision or application.

36(b) Contracts awarded pursuant to this article shall be valid until
37the project is completed.

38begin insert

begin insertSEC. 2.end insert  

end insert

begin insertArticle 12 (commencing with Section 103394) is added
39to Chapter 5 of Part 15 of Division 10 of the end insert
begin insertPublic Utilities Codeend insertbegin insert,
40to read:end insert

begin insert

 

P5    1Article begin insert12.end insert  Construction Manager/General Contractor Project
2Delivery Contracts
3

 

4

begin insert103394.end insert  

For purposes of this article, the following terms shall
5have the following meanings:

6(a) “Construction Manager/General Contractor method” or
7“CMGC” means the Construction Manager/General Contractor
8method as defined in subdivision (b) of Section 6951 of the Public
9Contract Code.

10(b) “Construction manager” means a construction manager as
11defined in subdivision (c) of Section 6951 of the Public Contract
12Code.

13

begin insert103395.end insert  

(a) Subject to the limitations of this article, the district
14may utilize the CMGC project delivery method for public transit
15projects within its jurisdiction.

16(b) The district may enter into a CMGC project delivery method
17contract pursuant to this article if, after evaluation of the
18traditional design-bid-build process of construction and of the
19CMGC project delivery method in a public meeting, the district
20makes a written finding that use of the CMGC project delivery
21method on the specific project under consideration will accomplish
22one or more of the following objectives: reduce project costs,
23expedite the project’s completion, or provide features not
24achievable through the design-bid-build method. This finding shall
25be made prior to the district entering into a CMGC project delivery
26method contract. In the CMGC project delivery method proposal,
27the written findings shall be included as part of an application for
28state funds for a transit project.

29

begin insert103396.end insert  

(a) Except as specified in subdivision (b), the district
30shall comply with subdivision (f) of Section 1771.5 of the Labor
31Code and shall reimburse the Department of Industrial Relations
32for its reasonable and directly related costs of performing
33prevailing wage monitoring and enforcement on public works
34projects pursuant to rates established by the department as set
35forth in subdivision (h) of Section 1771.5 of the Labor Code on
36projects using the CMGC project delivery method under this
37article. All moneys collected pursuant to this subdivision shall be
38deposited in the State Public Works Enforcement Fund, created
39by Section 1771.3 of the Labor Code, and shall be used only for
40enforcement of prevailing wage requirements on those projects.

P6    1(b) In lieu of complying with subdivision (a), the district may
2elect to enter into a collective bargaining agreement that binds
3all of the contractors performing work on the project and that
4includes a mechanism for resolving disputes about the payment
5of wages.

6

begin insert103397.end insert  

(a) If a contract for CMGC services is entered into
7pursuant to this article and includes preconstruction services by
8the construction manager, the district shall enter into a written
9contract with the construction manager for preconstruction
10services, under which the district shall pay the construction
11manager a fee for preconstruction services in an amount agreed
12upon by the district and the construction manager. The
13preconstruction services contract may include fees for services to
14be performed during the contract period; provided, however, the
15district shall not request or obtain a fixed price or a guaranteed
16maximum price for the construction contract from the construction
17manager or enter into a construction contract with the construction
18manager until after the district has entered into a services contract.
19A preconstruction services contract shall provide for the
20subsequent negotiation for construction of all or any discrete phase
21or phases of the project and shall provide for the district to own
22the design plans and other preconstruction services work product.

23(b) A contract for construction services will be awarded after
24the plans have been sufficiently developed and either a fixed price
25or a guaranteed maximum price has been successfully negotiated.
26In the event that a fixed price or a guaranteed maximum price is
27not negotiated, the district may award the contract for construction
28services utilizing any other procurement method authorized by
29law.

30(c) The construction manager shall perform not less than 30
31percent of the work covered by the fixed price or guaranteed
32maximum price agreement reached. Work that is not performed
33directly by the construction manager shall be bid to subcontractors
34pursuant to Section 6955 of the Public Contracts Code.

35

begin insert103398.end insert  

Nothing in this article affects, expands, alters, or limits
36any rights or remedies otherwise available at law.

37

begin insert103399.end insert  

(a) Upon completion of a project using the CMGC
38project delivery method, the district shall prepare a progress report
39to the board of directors. The progress report shall include, but
40shall not be limited to, all of the following information:

P7    1(1) A description of the project.

2(2) The entity that was awarded the project.

3(3) The estimated and actual costs of the project.

4(4) The estimated and actual schedule for project completion.

5(5) A description of any written protests concerning any aspect
6of the solicitation, bid, proposal, or award of the project, including,
7but not limited to, the resolution of the protests.

8(6) An assessment of the prequalification process and criteria
9utilized under this article.

10(7) A description of the method used to evaluate the bid or
11proposal, including the weighting of each factor and an assessment
12of the impact of this requirement on a project.

13(8) A description of any challenges or unexpected problems that
14arose during the construction of the project and a description of
15the solutions that were considered and ultimately implemented to
16address those challenges and problems.

17(9) Recommendations to improve the CMCG project delivery
18method authorized under this article.

19(b) The progress report shall be made available on the district’s
20Internet Web site.

21

begin insert103399.1.end insert  

(a) The provisions of this article are severable. If
22any provision of this article or its application is held invalid, that
23invalidity shall not affect other provisions or applications that can
24be given effect without the invalid provision or application.

25(b) Contracts awarded pursuant to this article shall be valid
26until the project is completed.

end insert


O

    98